McConico v. Price

JAMES MCCONICO, JR., Petitioner,v.WARDEN CHERYL PRICE AND THE ATTORNEY GENERAL OF THE STATE OF ALABAMA, Respondents

James McConico, Jr., Petitioner, Pro se, Bessemer, AL.

For Cheryl Price, Warden, Respondent: Attorney General of the State of Alabama, The, Respondent: John M Porter, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, Montgomery, AL.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

JOHN H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE.

Petitioner James McConico, Jr. (" McConico" or " Petitioner"), a person in custody under a judgment of a court of Alabama, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The petition was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b) for preliminary review. On or about September 18, 2014, McConico moved for the court to treat the petition as a motion pursuant to Rule 60(b), Federal Rules of Civil Procedure. (Doc. 17). Upon consideration, the undersigned finds McConico's motion to treat his habeas petition as a Rule 60(b) motion is due to be GRANTED, and the Rule 60(b) motion is due to be DISMISSED.

I. Procedural History

On June 3, 1999, a jury in the Circuit Court of Jefferson County, Alabama convicted McConico of murder. (Docs. 1 at 2 & 11 at 2). The next day, McConico was sentenced as a habitual offender to life imprisonment. (Doc. 11 at 2). McConico filed numerous petitions for post-conviction relief pursuant to Rule 32, Ala. R. Crim. P. (Id.; doc. 11-1 at 2-3).

On November 28, 2003, McConico filed his first post-trial writ of habeas corpus in a federal court challenging his 1999 conviction.[1] (Docs. 11 at 2 & 11-1 at 3). On November 30, 2007, United States District Judge Lynwood Smith adopted United States Magistrate Judge Robert R. Armstrong, Jr.'s report and recommendation and dismissed McConico's habeas petition. (Doc. 11-2; see 2:03-cv-3198-CLS-RRA, doc. 107). On March 26, 2008, the United States Court of Appeals for the Eleventh Circuit denied McConico's motion for a certificate of appealability. (Doc. 11-3). Thereafter, McConico filed several motions for relief from judgment, amendments thereto, and motions for reconsideration. ( See 2:03-cv-3198-CLS-RRA, docs. 124, 127, 134, 144, 145, 148, 159, & 161). On March 29, 2013 Judge Smith denied McConico's most recent motion for relief from judgment and explained, as he had been previously instructed, McConico must petition the Eleventh Circuit Court of Appeals for an order authorizing him to file a successive petition if he intended to raise further challenges to his 1999 murder conviction. (2:03-cv-3198-CLS-RRA, doc. 163 at 4).

On June 2, 2014, without seeking authorization from the Eleventh Circuit, McConico filed this habeas petition. (Doc. 1). In the petition, McConico declares he is not seeking re-adjudication of constitutional claims, but requests a determination of claims he was not permitted to bring in his previous habeas petition. (Id. at 10). McConico attacks the validity of his prior habeas, arguing Magistrate Judge Armstrong improperly denied him the opportunity to raise certain claims because the respondents seized all of his legal work product and the court did not order them to return it or provide him with additional copies. (Id. at 8).

On August 18, 2014, the undersigned notified McConico that Respondents had filed an answer seeking summary dismissal of his petition. (Doc. 12). This Order explained the court would treat his case as ripe for summary disposition and afforded McConico twenty-one days to supply additional evidentiary materials or legal arguments in support of his petition. (Id.). McConico then moved for an extension of time and requested a copy of Respondents' answer and " the documents he would need to prove his claim." (Doc. 13). On August 26, 2014, the undersigned granted McConico's motion for an extension of time, provided him with copies of Respondents' answer, but denied his request for unspecified " documents he would need to prove his claim." (Doc. 14).

Instead of filing a traverse with additional evidentiary materials or legal arguments in support of his petition, McConico has filed a " Motion to Compel Pursuant to Rule 56(d) Federal Rules of Civil Procedure." (Doc. 15). McConico makes a plethora of requests in this motion. First, McConico requests a " continuance, " claiming he is unable to obtain facts " to show . . . that there are adjudicated claims in his prior Habeas Petitions that he was impeded from including in his Amended Habeas Petition by the Respondents and . . . Magistrate [Judge] [] Armstrong due to the Judge [sic] biasness and Respondent's state created impediments." (Id.at 1). McConico also requests the court order Respondents to provide him with a complete set of his trial and evidentiary hearing transcriptions and over fifty documents from his prior habeas case. (Id.at 2-3). McConico also requests appointment of counsel, ( id . at 3), and for discovery under Rule 6 of the Rules Governing Section 2254 Cases ( id . at 4). On September 3, 2014, the undersigned denied McConico's most recent motion, (doc. 15). (Doc. 16). The undersigned gave McConico until September 30, 2014, to file any additional materials in support of his petition. (Id.).

In response to Respondents' answer, McConico contends his petition is not successive, but asserts he is attacking the integrity of his first habeas petition as a fraud that deprived him of the review of certain constitutional claims. (Doc. 15 at 4). He explains that he " hasn't filed a second habeas petition" and insinuates the court could treat his petition as a Rule 60(b) motion. (Id.). On October 3, 2014, McConico filed a traverse. (Doc. 20).

On or about September 18, 2014, McConico moved for the court to treat his petition as a motion pursuant to Rule 60(b), Federal Rules of Civil Procedure. (Doc. 17). McConico explains he is not attacking the substance of district court's resolution of this prior habeas petition, but the defect in the integrity of the petition. Thereafter, McConico filed a traverse, (doc. 20), and two evidentiary submissions, (docs. 21-22). Upon consideration, the undersigned finds McConico's ...

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